Somach Simmons & Dunn | Attorneys at Law

Subscribe to our eAlerts

Please complete the form below to subscribe and recieve our monthly eAlerts via email.

November 10, 2015  |  Written by Brittany Lewis-Roberts

District Court Dismisses Action Challenging CVP Drought Operations Under Clean Water Act

On October 20, 2015, Judge Lawrence O’Neill of the U.S. District Court for the Eastern District of California dismissed the action brought by the California Sportfishing Protection Alliance (CSPA) against the U.S. Bureau of Reclamation (Reclamation) challenging the requests in Reclamation’s Temporary Urgency Change Petition (TUCP) to modify requirements to meet water quality standards in the Sacramento-San Joaquin Delta during the extreme drought conditions. CSPA originally filed the action against the California Department of Water Resources, the State Water Resources Control Board (State Board), and various state officials in addition to Reclamation and other federal officials. On August 19, 2015, CSPA voluntarily dismissed the complaint against the state defendants, leaving only the claims against the federal agencies. Judge O’Neill dismissed those remaining claims against the federal defendants for lack of jurisdiction.

In Decision 1641 (D-1641), the State Board implemented water quality standards for the Delta through modifications to the permits and licenses for the Central Valley Project and State Water Project. In 2015, Reclamation and DWR filed a TUCP, which sought modifications to the agencies’ water rights permits for the purpose of storing additional water to address extreme drought conditions. CSPA argued that Reclamation violated the Clean Water Act, among other statutes, when it petitioned the State Board for these modifications and subsequently operated the CVP according to the requirements in the TUCP order rather than the water quality standards imposed in D-1641.

Ultimately, the Court rejected CSPA’s claims because it could not identify a “final agency action” for purposes of the Administrative Procedure Act (APA). The APA allows plaintiffs to seek judicial review of “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .” The Court found that filing the TUCP with the State Board is not a final agency action. Further, the Court explained that implementation of the TUCP order through the day-to-day operations of the CVP is not an “agency action” without a specific order or formal statement of policy from Reclamation. Thus, CSPA did not allege an agency action subject to judicial review under the APA, and no other exceptions apply. The Court concluded that CSPA’s claims must be dismissed, unless CSPA can demonstrate that it should be granted leave to amend the complaint.

For more information on this case, please contact Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

Read more news and alerts »